Client?
Call Now
  1. Home
  2. Guides
  3. Other employment relations
  4. Without prejudice

Without Prejudice

Published June 7, 2023 (last updated on December 4, 2023) | Adam Wyatt - Copywriter and Content Creator

What does without prejudice mean? 

‘Without prejudice’ is a legal term used to describe written or verbal communications aimed at settling disputes which cannot later be referred to in court.  

During attempts to settle a dispute, emails, letters and conversations are often defined as without prejudice. This forms a non-disclosure agreement which means the involved parties cannot later use anything discussed as evidence in a legal case.  

How does without prejudice help? 

Due to the protection that comes with discussing a dispute without prejudice, parties can speak openly and candidly without the risk that their suggestions will later be used against them.  

Also, if more than two parties are involved in a dispute, they can negotiate with each other without worrying about the other parties being notified of their suggestions.  

Discussions that are classed as without prejudice create the conditions for transparency and honesty, allowing everybody involved to safely explore any workable solutions. Ultimately, this makes the resolution of a dispute a much more likely outcome. 

How does without prejudice apply in the workplace? 

In a professional setting, without prejudice conversations are typically used to settle workplace disputes.  

Employers and employees will often hold without prejudice conversations, allowing both parties to negotiate without the risk of the discussion later being referred to in an unfair dismissal claim or employment tribunal. 

Example of without prejudice in the workplace  

Without prejudice conversations often take place between an employer and employee while a termination agreement is being negotiated.  

A termination agreement is used when both parties mutually agree to end an employment contract. Having discussions without prejudice allows both parties to suggest the terms of the agreement, which normally focus on financial compensation.  

How to use without prejudice 

Both written and oral communications can be classified as without prejudice. If you want a settlement communication such as an email or letter to be deemed ‘without prejudice’, you should: 

  • Write ‘without prejudice’ clearly at the top of any written correspondence 

  • State it at the start of any non-written conversations

However, keep in mind that this may not always be enough to legally protect the communication. Without prejudice only applies to: 

  • Genuine settlement negotiations 

  • Dispute resolution processes such as mediation or court proceedings 

If a communication is not marked as without prejudice, a court may examine the circumstances surrounding a conversation to decide if it took place in a genuine attempt to settle a dispute. If this is the case, the communication will be treated by the court as without prejudice.  

After a dispute is settled 

If you come to an agreement, you need to put it in writing so that it becomes legally binding. You should also specify the exact complaint or dispute that the agreement relates to.  

It’s also best practice to maintain record keeping of any communications that lead to resolution, including verbal conversations, which will need to be transcribed as they take place.  

Should your business use without prejudice? 

If things aren’t working out between you and your employee, a without prejudice conversation could help you reach an agreement without the danger of personal grievance or unfair dismissal claims.

However, you should tread carefully. It’s wise to seek legal advice so that you can be certain you’re acting within the limits of the law and not exposing your company to any unnecessary risks. 

Frequently Asked Questions

Does without prejudice always apply?

In some cases, even when you mark correspondence as ‘without prejudice’, the privilege will not apply. These cases include when the communication:  

  • Includes any misleading or illegal comments 
  • Presents information that has already been shared with the party’s consent 
  • Includes a clear statement that the communication is not to be treated as confidential 
What does ‘without prejudice save as to costs’ mean?

‘Without prejudice save as to costs’ means that the protection only applies in court until the court delivers a verdict.  

Normally the unsuccessful party must pay the other party’s legal costs, and the court may use communications marked ‘without prejudice save as to costs’ to decide exactly what those costs should be.

Healthy workplace relations are the backbone of any successful business, but sometimes can be difficult to maintain. Luckily, Employsure has years of experience in workplace relations and can help you navigate even the trickiest situations. For support with your business, call our 24/7 Advice Line on 0800 568 012.

Guides in this category

View All

Have a question?

Employsure Logo

Not a client yet?

0800 568 012

Existing clients call

0800 675 700

Existing clients (overseas)

+64 9 941 5205

Employsure Office

8 Tangihua Street, Auckland CBD
Peninsula LogoEmploysure Law LogoFair Work Help LogoEmploysure Mutual LogoBright HR LogoHealth Assured LogoGraphite HRM Logo
Peninsula LogoEmploysure Law LogoFair Work Help LogoEmploysure Mutual LogoBright HR LogoHealth Assured LogoGraphite HRM Logo

Copyright © 2024 Employsure Pty Ltd. ABN 40 145 676 026

Employsure Protect is a discretionary risk product issued by Employsure Mutual Limited ACN 630 256 478 (AFSL 544232). Employsure Mutual has appointed Employsure Limited to distribute the product in New Zealand. To decide if this product is right for you, please read the Employsure Protect Product Disclosure Statement.